IN THE SUPREME
COURT OF NAMIBIA

CASE
NOs: SA 19/2012 and SA 27/2012

DATE:
15 NOVEMBER 2013

REPORTABLE

In the matter
between:

BELETE
WORKU...................................................................................Appellant

And

EQUITY AVIATION
SERVICES (NAMIBIA)

(PTY) LTD (IN
LIQUIDATION)..............................................First
Respondent

L M MOLOTO &
J S KOKA NNO..................................Second
Respondents

G F KÖPPLINGER
& OTHERS.........................................Third
Respondents

J A N STRYDOM &
OTHERS..........................................Fourth
Respondents

Coram: O’REGAN
AJA, ZIYAMBI AJA and GARWE AJA

Heard: 4
November 2013

Delivered: 15
November 2013

APPEAL
JUDGMENT

O’REGAN AJA
(ZIYAMBI AJA and GARWE AJA concurring):

[1] This case has a
long and contested history. More than ten years ago, the appellant,
Mr Belete Worku, was employed on a three-year contract by the first
respondent, Equity Aviation Services (Namibia) (Pty) Ltd which is now
in liquidation, at a time when the company was called Servisair
Namibia (Pty) Ltd. During September 2001, when more than two years
of his contract was left to run, Mr Worku was dismissed and he
approached the District Labour Court for relief, alleging unfair
dismissal. The termination of his employment with the first
respondent lies at the heart of the grievance that brings the
appellant before this Court for the second time. The further facts of
his dispute with the first respondent are set out in the judgment of
this Court that followed from appellant’s previous appeal to
the Court.¹

[2] The most
important fact to record here is that appellant obtained two
judgments from the District Labour Court sounding in money, the one
initially granted on 4 February 2002 and amended on 1 November 2002,
or so it appears, and the other granted on 3 December 2004. It is
difficult to discern from the incomplete and uncertified appeal
record (of which more will be said in a moment) the exact amount of
money that the District Labour Court ordered the first respondent to
pay to the appellant. The appellant asserts that the total exceeded
N$1 000 000, coupled with an order to pay interest from the dates of
the respective judgments. What is clear is that it has been
appellant’s goal to obtain satisfaction of these judgment debts
from the first respondent.

[3] The immediate
genesis of these appeal proceedings lies in the fact that on 1
December 2011, Equity Aviation Services (Pty) Ltd, apparently a South
African company, launched urgent proceedings to obtain an order from
the High Court placing the first respondent into provisional
liquidation. A rule nisi was granted with a return date of 20 January
2012, which on that date was extended to 2 March 2012. On that return
day, Ueitele AJ confirmed the rule and placed the first respondent
into final liquidation. The apparent consequence of the order of
final liquidation was that the claims that appellant had against the
first respondent became claims within the concursus creditorum thus
preventing the appellant from recovering the judgment debts by way of
execution. On 13 April 2012, appellant lodged a notice of appeal
against the judgment of Ueitele AJ in granting the final liquidation
order. This shall be referred to as the first appeal.

[4] Some months
prior to the application for provisional liquidation, on 30 September
2011, the appellant had approached the High Court urgently on a few
hours notice for an order to prevent a long list of respondents from
selling, liquidating or closing first appellant. On that date,
Miller AJ delivered an extemporaneous judgment dismissing the
application with costs. ²
On 28 March 2012, the third respondent in this appeal, who had also
been a respondent in the matter before Miller AJ, applied for the
taxation of the costs ordered by Miller AJ. On 23 May 2012, the costs
were taxed at approximately N$3000. At about this time, appellant
brought an application to review the judgment of Miller AJ before the
High Court. On 8 June 2012, Kauta AJ removed the review application
from the roll in order to afford the respondents an opportunity to
respond to appellant’s application and on 22 June 2012,
appellant lodged a notice of appeal against the order of Kauta AJ.
This shall be referred to as the second appeal.

[5] In about May
2012, as well, the appellant approached the High Court, this time
seeking a review of the final liquidation order granted by Ueitele AJ
in March 2012. In response, again it would appear, the respondents
lodged a Rule 30 notice asserting that the review application was an
irregular proceeding. On 13 November 2012, Unengu AJ found that the
review application was indeed an irregular proceeding and struck the
application from the roll with costs. Appellant lodged a notice of
appeal against this order in December 2012. This shall be referred to
as the third appeal.

[6] In describing
these three notices as ‘notices of appeal’, it is
important to record that they do not crisply and clearly identify the
issues that are raised in the respective appeals. Instead, they are
discursive documents that are difficult to comprehend. For example,
the precise identity of the respondents is nowhere clearly indicated.
The first respondent is the Namibian company that is in liquidation
as described in para [1]. The second respondents appear to be the
liquidators of the first respondent. The third and fourth respondents
are various legal practitioners. Of these only Mr G F Köpplinger
was represented in these proceedings and is described as the third
respondent in this judgment. I shall return to the lack of clarity
in the notices of appeal when I consider the issue of prejudice
occasioned by the manner in which these appeals have been prosecuted.

Appellant’s
failure to comply with the rules of this Court

[7] The facts set
out in the previous paragraphs are not exactly stated because the
Court is not certain what the facts are. The Court has had to piece
together the events underlying these appeals from judgments of courts
below as well as from the heads of argument filed by the parties to
the appeal, as the facts do not appear from what has been lodged as
the appeal record.

[8] The rules of the
Supreme Court are clear. An appeal must be lodged within a
stipulated time, ³
and thereafter, a record of the appeal must be filed within three
months of the judgment against which the appeal is brought.⁴
Rule 5(6)(b) states that if an appellant has failed to lodge an
appeal record within the stipulated time, he or she ‘shall be
deemed to have withdrawn his or her appeal’.

[9] Moreover, the
rules require that the Registrar of the court from which the appeal
comes must certify one of the copies of the appeal record as correct.
⁵
This rule is important in ensuring that what is filed as a record on
appeal does indeed include the documents that served before the court
whose judgment is the subject of the appeal. In support of this
requirement, Rule 5(13) provides that the record shall ‘contain
a correct and complete index of the evidence and of all the documents
and exhibits in the case’ and Rule 5(10) provides that every
tenth line of each page shall be numbered.

[10] The appellant
lodged one appeal record in relation to all three notices of appeal,
albeit in two parts. The first nine volumes of the appeal record were
lodged on 16 November 2012 and a tenth volume was lodged in
mid-December 2012. The first material breach of the rules of this
Court relates to the timing of the lodging of the appeal record. The
first nine volumes were lodged more than eight months after the order
of final liquidation was made (in respect of which the first notice
of appeal was noted), and more than five months after the order made
by Kauta AJ which is the subject of the second notice of appeal.
Given that the records were lodged more than three months after the
judgments that were the subject of the appeals had been handed down,
the first two appeals are deemed to have been withdrawn by the
appellant as provided for in Rule 5(6)(b). Appellant was informed of
this fact before he lodged the appeal record as appears from the
record which contains two letters from the Registrar of this Court,
dated 24 July 2012 and 23 October 2012 respectively, notifying
appellant that due to his non-compliance with Rule 5(6)(b), his first
two appeals are deemed to have lapsed.

[11] The
jurisprudence of this Court in this regard is well-established. ⁶
If an appeal is deemed to have been withdrawn within the meaning of
Rule 5(6)(b) the appellant must lodge an application for condonation
for the late filing of the appeal record as well as reinstatement of
the appeal. The appellant failed to apply for reinstatement of the
first and second appeals, despite the letters from the Registrar of
this Court. On this basis alone, neither of these appeals is properly
before the Court and should accordingly be struck from the roll.
Although there are documents labelled ‘applications for
condonation’ in the record, these documents are not in the
proper form. They do not contain clear prayers for relief, nor are
they supported by duly attested affidavits, nor do they set out
concisely and clearly the reasons for non-compliance with the Rules.
Moreover, these purported applications for condonation were never
independently served or filed, but were merely added to the record as
if they had been. The absence of proper applications for condonation
and for reinstatement of the appeals is an insuperable obstacle to
this Court entertaining the first and second appeals.

[12] The second
material breach in relation to the prosecution of the appeals relates
to the appeal record that has been filed. The record is in ten
volumes, and is neither indexed, nor paginated and the lines are not
numbered as required by rule 5(10). Of great importance is the fact
that the record does not contain ‘a correct and complete index
of the evidence and of all the documents and exhibits’ ⁷
filed in the various proceedings below. It is for this reason that
this Court has found it difficult to ascertain the facts relevant to
the appeal (see paragraphs 2 - 6 above).

[13] In relation to
the first notice of appeal, the appeal against the final liquidation
order, the record does not include the notice of motion or founding
affidavit that initiated the application. This constitutes material
non-compliance with the rule and renders it impossible for the appeal
to be heard. An appellate court cannot determine an appeal against an
order of another court without having at the very least the material
parts of the record on which that court made its order.

[14] Similarly, in
relation to both the second and third notices of appeal, the record
does not include the founding papers upon which appellant sought to
have the decision of Kauta AJ or Unengu AJ reviewed. Without these
documents, together with the judgments and orders made by the courts
below, that should form the core of the record as stipulated by Rule
5(13), an appeal cannot proceed. Instead of the documents that the
record should contain, the record contains hundreds of pages of
materials and documents that are of little apparent relevance to the
issues on appeal. The manifest and manifold inadequacy of the record
that has been filed by appellant constitutes a second insuperable
obstacle to this Court entertaining the first and second of these
appeals, as well as an insuperable obstacle to entertaining the third
appeal.

[15] There is a
further material defect in the manner in which these appeals have
been prosecuted. The appellant failed to pay security for the
respondents’ costs in terms of rule 8(3). According to that
rule, failure to inform the Registrar at the time that the copies of
the appeal record are lodged of the fact that an appellant has
entered into security in terms of rule 8, or been released from the
obligation to furnish security, constitutes non-compliance with rule
8(3). In terms of rule 8(3) non-compliance with that subrule also
constitutes non-compliance with rule 5(5). At no stage of these
proceedings, has appellant furnished security for respondents’
costs, nor have respondents released him from that obligation. The
consequence of his failure to furnish security was drawn to the
appellant’s attention by the Registrar of this Court in the
letters referred to in para [10] above. Yet appellant took no steps
to remedy the matter.

[16] A further
material difficulty should be mentioned in relation to the second
notice of appeal. This notice purports to note an appeal, as of
right, against an order made by the High Court that was interlocutory
in character. An appeal does not lie as of right against such an
order, ⁸
and the appellant was therefore not entitled to note an appeal
against that order, without leave. No leave appears to have been
sought in this respect and this failure too constitutes an
insuperable barrier to the purported appeal.

[17] It follows from
what has just been said that the appellant has not complied with the
Rules of the Court that regulate the prosecution of appeals in
material respects. In reaching this conclusion, it has been borne in
mind that appellant is a layperson who represents himself before the
Court. The appellant implored the Court to overlook his procedural
non-compliance and determine the substantive issues that he asserts
underlie the appeals, namely, the satisfaction of the judgments of
the District Labour Court mentioned above. However, we cannot
overlook the rules which are designed to control the procedures of
the Court. Although a court should be understanding of the
difficulties that lay litigants experience and seek to assist them
where possible, a court may not forget that court rules are adopted
in order to ensure the fair and expeditious resolution of disputes in
the interest of all litigants and the administration of justice
generally. Accordingly, a court may not condone non-compliance with
the rules even by lay litigants where non-compliance with the rules
would render the proceedings unfair or unduly prolonged.

[18] Respondents’
counsel asserted that appellant’s extensive non-compliance with
the Rules has severely prejudiced the respondents in that they have
been brought to court to answer a case not clearly identified in the
three notices of appeal, ⁹
on an appeal record, lodged late, which fails to include the core
documents and papers that it should contain and in circumstances
where the appellant has not furnished security for their costs on
appeal.

[19] In all these
circumstances, the ineluctable conclusion is that the three appeals
are deemed to have been withdrawn within the meaning of rule 5(6)(b)
given the material non-compliance with, amongst others, rules 5(5)
and 8(3). The proper order, therefore, is that the three appeals
should be struck from the roll.

[20] A final note
should be added. It should have been clear to the Registrar of this
Court that the record in these appeals was not in compliance with the
rules, and also that the appellant had failed to furnish security for
the respondents’ costs on appeal. It is undesirable for appeals
to be enrolled for argument in circumstances where there is material
non-compliance with the rules as the hearing of such appeals may
involve respondents in unnecessary legal expense that they may not be
able to recover, and will put strain on scarce judicial resources.
Rule 5(6)(b) makes it plain that non-compliance with rule 5(5), and
by extension rule 8(3), will have the consequence that an appeal is
‘deemed to be withdrawn’. In this regard attention is
drawn to rule 5(16) which provides that:

‘The Registrar
may refuse to accept copies of records which do not in his or her
opinion comply with the provisions of this rule.’

[21] Accordingly,
where an appeal is deemed to have been withdrawn, or where the appeal
record is not in proper order, an appeal should not be enrolled for
hearing until proper applications for condonation and reinstatement
of the appeal have been filed and served and the record has been put
in proper order. Adopting this approach will ensure that respondents
are not put to unnecessary legal expense and that scarce judicial
resources are not dissipated.

Costs

[22] One last issue
requires determination: costs. As it will be necessary for the
appeals to be struck from the roll, it is appropriate that the
appellant be ordered to pay the costs of the appeal. Those costs,
however, will not include the wasted costs of the appearance on 5
July 2013. The appeal was enrolled for hearing on 5 July 2013 but
had to be postponed due to the unavailability of two of the judges of
appeal. The postponement was thus occasioned without fault on the
part of any of the litigants. No order of costs was made on 5 July
when the appeal was postponed, and this Court takes the view that the
costs order made in this appeal should exclude the wasted costs
occasioned by the appearance on 5 July given that it was occasioned
by no fault of the parties. Accordingly, no order is made as to the
costs of the appearance on that date.

[23] The first and
third respondents who appeared in this matter were represented at the
hearing by the same instructed counsel, but by different firms of
instructing counsel. Mr van Vuuren who appeared at the hearing on
behalf of the first and third respondents requested that an order of
costs made in favour of the respondents should be on the basis that
the costs include costs of one instructed and two instructing legal
practitioners. It shall be so ordered.

Order

[24] The following
order is made:

1. The appeals are
struck from the roll.

2. The appellant is
ordered to pay the costs of the respondents on appeal, save for the
wasted costs of appearance on 5 July 2013, such costs to include the
costs of one instructed and two instructing legal practitioners.

3. No order is made
as to the wasted costs of appearance on 5 July 2013.

O’REGAN AJA

ZIYAMBI AJA

GARWE AJA

APPEARANCES

APPELLANT: In
person

FIRST & THIRD
RESPONDENTS:

A S van Vuuren

Instructed by G F
Köpplinger Legal Practitioners